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Two courts reaffirm protections for opinions based on disclosed facts

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Determining whether a statement is a fact or opinion can make or break a defamation claim. Recently, two courts —…

Posted on December 3, 2015

Determining whether a statement is a fact or opinion can make or break a defamation claim. Recently, two courts — the high court in Massachusetts and a federal district court in Virginia — dismissed defamation suits after ruling the statements were opinions based on facts disclosed by the journalist, reminding reporters to support their opinions with facts to limit liability.

The Massachusetts Supreme Judicial Court held articles published by the Boston Herald regarding the suicide of Brad Delp, the lead singer of the rock band Boston, were protected as opinion, ending a five-year court battle.

Boston’s founder Tom Scholz sued the Boston Herald and Micki Delp, the ex-wife of Brad Delp, for defamation after the newspaper wrote articles in 2007 discussing potential reasons Brad Delp may have taken his life. Scholz claimed comments from Micki Delp featured in the articles implied Scholz was at fault for the suicide.

In concluding the statements were constitutionally protected as opinion, the Supreme Judicial Court examined the context of the statements within the complete articles, writing on Nov. 25 that a “reasonable reader would consider the statements about the cause of Brad’s suicide to have been nothing more than conjecture or speculation, reflecting the opinion of the speaker.”

The Court also analyzed the factual assertions contained in the article, finding that the the Boston Herald’s articles “clearly indicated to the reasonable reader that the proponent of the expressed opinion engaged in speculation and deduction based on the disclosed facts.”

In Virginia, meanwhile, a federal court dismissed a defamation suit by Alejandra Sota Mirafuentes, former spokesperson and advisor to former Mexican President Felipe Calderón, against Dolia Estevez, a part-time correspondent for Mexican media company Noticias MVS and Forbes contributor.

The claim stemmed from a Forbes article written by Estevez titled, "The 10 Most Corrupt Mexicans of 2013," in which Sota was included.

Sota argued her reputation was harmed from the articles because they state and imply she is corrupt and one of the most corrupt people in Mexico.

A judge in the Eastern District of Virginia dismissed her claim on Nov. 30, finding that the assertion that Sota is perceived to be one of the most corrupt Mexicans in 2013 is an opinion because “there is no objective test to determine who is the ‘most’ corrupt.” Additonally, the Court declared that Estevez’s decision to put Sota on the list was a “personal conclusion” formed from two true facts disclosed in the article — the fact Sota was being investigated by Mexican authorities for alleged embezzlement and trafficking of influence and the fact she attended Harvard’s Kennedy School without a bachelor’s degree.

According to the court, because the bases for the conclusions were fully disclosed and did not imply further facts, a reasonable reader would consider the conclusion an opinion of the author.

The courts in Scholz and Sota relied heavily on Milkovich v. Lorain Journal Co., a 1990 U.S. Supreme Court case setting the most recent standard used to assess the fact-opinion dichotomy.

The Milkovich court considered the following in determining whether a statement was a fact or opinion: “the statement’s language and context,” the “general tenor of the article,” and whether the article’s language was “loose, figurative, or hyperbolic.” The court wrote that "an opinion may constitute actionable defamation, but only if the opinion can be reasonably interpreted to declare or imply untrue facts.” An opinion with no "provably false factual connotation" is protected.

These two recent cases provide a lesson for journalists, not just those that express opinions but anyone who reports the opinions of their subjects or sources. Providing facts from which readers can evaluate the truthfulness of opinions will decrease the chance of incurring defamation liability. Because statements lacking factual support may imply knowledge of undisclosed facts, the statements may be considered facts that drag reporters into defamation suits.

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